Working With and Against Experts in Business Valuation Disputes

How do solicitors, barristers and expert witnesses best work together in business valuation disputes to get the best outcome for our clients?  On 8 November 2022, we were delighted to welcome Travis Taylor and Abigail Harris (Secretariat) and Fraser Campbell (Blackstone Chambers) to join Tom McDonnell and Katy-Jade Church of Brown Rudnick to discuss a range of responses to this question. 

During what proved to be a valuable and rare opportunity to bring representatives from the legal and expert witness professions together, we discussed how instructing experts early, building a good rapport between the legal team and expert from the outset, agreeing deadlines and understanding capacity constraints were easy ways for us all to improve the working relationship.  Experts must remain independent but not be isolated, and solicitors can best assist that process by advising clients on the duty of the expert to the Court pursuant to Part 35 of the Civil Procedure Rules.  

In Court, judges like experts who are realistic and open-minded, which means acknowledging where there is a spectrum of disagreement and then explaining why one part of that spectrum is preferable.  Novel ways of best working together included the example of instructing an expert to assist counsel live in court with cross-examination of an expert in the same discipline to devastating effect, resulting in a highly successful client outcome.   

Finally, we learnt that one of the challenges to the expert industry was bringing in new experts and building their experience, particularly female experts who continue to be underrepresented.  Witness training programs were not the preferred solution for all, particularly when there is a question over who pays for that service when managing client expectation that the expert will already have the skills needed for the task of being cross-examined.  Solutions to that challenge are varied but include experts co-signing reports and taking responsibility for different parts of it, as well as giving experts with sufficient sector expertise but less experienced in the role of being cross-examined the opportunity to lead in the right cases.    Suggested exceptions to the general position against witness training programs for experts include instructions given to a witness with a rare form of expertise, or an expert from outside of the jurisdiction, who could not reasonably be expected to have prior experience of the English court system.